Excerpt: - - kunjupanicken, air 1954 trav-co 439, where it is has been held that the direct in contained in section 244 regarding hearing of the complainant and taking evidence is mandatory and without complying with that direction a magistrate has no jurisdiction to deal with the case under section 245. an order passed in clear violation of sections 244 and 245 was, therefore, clearly illegal......code . the high court held that before an order of acquittal can be made under section 245 of the code evidence has to be heard. the magistrate cannot without hearing the evidence pass an order straightway under section 245. the police papers in spite of the recent amendment cannot take the place of evidence under section 244 upon which the order of acquittal has to be based. the order of acquittal was accordingly set aside. another case referred to by him is one of kadutha v. kunjupanicken, air 1954 trav-co 439, where it is has been held that the direct in contained in section 244 regarding hearing of the complainant and taking evidence is mandatory and without complying with that direction a magistrate has no jurisdiction to deal with the case under section 245. an order passed in.....

Judgment:

1. This appeal arises out of an order passed on 29-1-1965 by Mr. R I. Lallaje, Judicial Magistrate. First Class, gandevi, in Criminal Case No. 1027 of 1964 whereby the accused-respondent came to be acquitted under section 245 (1) of the Criminal Procedure Code for the offences punishable under section 66(b) and 85(1)(2) of the Bombay Prohibition Act. The Criminal Appeals Nos. 425 to 428 of 1965 are similar to the present one and they involve the same questions which we are required to consider in this appeal. Al of them are, therefore, heard together, and a common judgment is recorded in this appeal.

(2) The accused in all these cases were charge-sheeted by the police on 19-10-1964 in respect of their having been found drunk and behaving in a disorderly manner on a public road, under the influence of drink so as to be liable for offences punishable under section 66(b) and 85(1)(2) of the Bombay Prohibition Act. The offences by the accused in all the cases he alleged to have been committed on different dates. Their pleas came to be recorded on 21-10-1964 and since they pleaded not guilty to the charges levelled against each of them, the matters came to be adjourned for evidence. However, a the cases came up for hearing before the learned Magistrate on 29-1-1965. On that day the learned Advocate for the accused in each case pointed out to the Court that the doctor's certificate from the police papers shows that though blood was taken on the day he was arrested, it was sent to the Chemical Analyser, Gujarat State after seven days. The learned Magistrate thus looked into the police papers and finding therefrom that since the blood taken in a phial was not forwarded within seven days as prescribed under Appendix A rule 4 (2), he thought that on that material, the accused cannot be convicted for such offences without therefore, recording any evidence whatever, he passed an order acquitting the accused of the charges levelled against them, under Section 245 (1) of the Criminal Procedure Code. That order of acquittal is challenged by the State in all these appeals.

(3) Mr. Nanavaty, the learned Assistant Government, Pleader, contends that the order of acquittal passed under Section 245 (1) of the Criminal Procedure Code by the learned Magistrate on a perusal of police papers, and without recording any evidence of the prosecution is contrary to law and it is therefore, liable to be set aside. Reliance was placed in support thereof on three cases to which I shall refer hereafter. It is common ground that the procedure to be followed in respect of these cases is one contemplated for summons cases laid down in Chapter XX of the Criminal Procedure Code. Section 242 of that Chapter provides that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted. That was done by the learned Magistrate and since he did not plead guilty to the same, the case was adjourned for recording evidence to that a next date as required under Section 243 of the Code. In those circumstances i.e., when no such admission was made by the accused, the Magistrate has to proceed and follow the procedure laid down in Section 244. This Section 244 of Criminal Procedure Code provides that the Magistrate shall proceed to hear the complainant if any, and take all such evidence as may be produced in support of the prosecution, and also hear the accused an take all such evidence as he produces in his defence and it is only thereafter that if the Magistrate upon taking the evidence referred to in S. 244 and such further evidence if any, as he may, on his motion, cause to be produced , and, if he thinks fit, examining the accused, finds the accused not guilty, he shall record, an order of acquittal under Section 245 (1) of the Criminal Procedure Code. Thus on a plain reading of sections 243, 244 (1) and section 245 (1) of the Criminal Procedure Code , it is abundantly clear that once the accused denies to have committed any offence and, in other words, claims to be tried, the only course that the Magistrate has to follow is to hear the complainant if any, and take al such evidence as my be produced in support of the prosecution and also to hear the accused and take all such evidence as he may produce in his defence. The use of words 'Shall proceed to hear' makes it obligatory on the Magistrate to hear the complainant and take all such evidence led by him as required under Section 244 (1). Not only that, but if we go to Sections 245 (1) of the Code, it refers to the words 'upon taking the evidence' referred to in Section 244.' Which make it clear that the Magistrate has to take evidence as required under Section 244; and it is only then that he can pass an order of acquittal under Section 245 (1) of the Code. What is contemplated is 'taking of evidence' by the Magistrate, and that cannot stand compiled with by only looking into the police papers of the case and acquitting the accused as some defect about the phial containing the blood of the accused having not been sent to the testing Officer in time as required under a certain rule. The police papers do not form part of a record of the case, ad what they contained is no evidence in law. Now it is clear that no evidence is recorded either of the complainant or of any of the prosecution witnesses that may have to be produced by the complainant in any of the prosecution witnesses that may have to be produced by the complainant in any of these cases. The learned Magistrate has thus obviously lost sight of the simple procedure which in law he is required to follow in hearing any summons case, and that the order passed on the basis of perusing police papers of the case is illegal and cannot stand;.

(4) Mr. Nanavty has referred to three cases of different High Courts which support the view I take on a plain reading of the provisions of sections 243 to 245 of the Criminal Procedure Code as I have stated hereabove. The first case of Radhanath Maji v Kishorilal Banerjee, AIR 1958 Cal 194. In that case on the date fixed for hearing the prosecution evidence, the Magistrate on the request of the accused, after perusing the police papers, passed an order of acquittal under Section 245, Criminal Procedure Code . the High Court held that before an order of acquittal can be made under Section 245 of the Code evidence has to be heard. The Magistrate cannot without hearing the evidence pass an order straightway under Section 245. The police papers in spite of the recent amendment cannot take the place of evidence under Section 244 upon which the order of acquittal has to be based. The order of acquittal was accordingly set aside. Another case referred to by him is one of Kadutha v. Kunjupanicken, AIR 1954 Trav-Co 439, where it is has been held that the direct in contained in section 244 regarding hearing of the complainant and taking evidence is mandatory and without complying with that direction a Magistrate has no jurisdiction to deal with the case under Section 245. An order passed in clear violation of Sections 244 and 245 was, therefore, clearly illegal. The third class referred to by him is of State of Rajasthan v. Mukhtiar Singh, 1965 (2) Cri LJ 835 (Raj), where it was similarly held that the directions contained in Section 244 are mandatory and without complying with those directions the Magistrate has no jurisdiction to deal with the case under Section 245 and to pass an order acquitting the accused. It is, thus, clear that the order of acquittal passed under Section 245 (1) of the Criminal Procedure Code by the learned Magistrate is in clear violation of the mandatory provisions contained in Sections 244 (1) and 245 (1) of the Criminal Procedure Code and that, therefore, it is liable to be set aside.

(5) In all the five appeals, therefore, the order of acquittal passed by the learned Magistrate shall be set aside and the case shall be sent back to the trial Court for proceeding further in accordance with law.